The science of jurisprudence consists of a knowledge of the precepts of the Divine Legislator in their relation to human affairs
The science of jurisprudence consists of a knowledge of the precepts of the Divine Legislator in their relation to human affairs Majalla Article 1 =Akademik görüşler “What is jurisprudence? Is it still Justinian’s ‘science of things divine and human’? Is it still ‘the science of the just and the unjust’?” Dawid Bunikowski, Doctor of Law, Postdoctoral Researcher, University of Eastern Finland, Law School, Joensuu campus Abstract The paper is to answer the question what jurisprudence is. Is it still “the science of things divine and human”, as it was wonderfully stated in the Code of Justinian in 534, following Roman law (Roman jurisprudence) and great Roman jurists like Ulpian? Is jurisprudence still “the science of the just and the unjust”, as we read in the Code? I propose to go to Justinian’s Compilation, Book I. Of Persons, I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will also examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. My thesis is that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was essentially redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Now axiological consistency of Western law is full of … inconsistency. Something is broken in jurisprudence. Nowadays, in the beginning of the 21st century, for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy'. However, there are good' exceptions (Finnis, Witte, Alexander, Doe, Bankowski). There is an axiological struggle in this science indeed. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state. Its practical importance in legal education and political science is remarkable. I analyse relations between law and religion (and morality) in jurisprudence while talking about the condition of the today Western jurisprudence. Furthermore, while going back to the origins of law in Europe, I focus on three roots: 1. Greek philosophy (Aristotle and Plato), 2. Roman law (Ulpian, Cicero, Gaius etc.) and 3. Medieval jurisprudence and theology (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law in the persons of Suarez, Molina, Lessius etc.). Western law conceptually was rooted in Christianity. Sadly, while answering the question from the paper sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said. Nowadays also the great idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as “a mother of law” (Baldus Commentaria to D. I.I.I.2) seems dubious. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage. Structure Introduction I. Concept. 1. The concept of jurisprudence. 2. Roman law: law and justice. 3. Justinian's jurisprudence. II. Present of the science of law. 4. Contemporary branches of legal theory. 5. John Finnis - exceptional scholar. Struggle in the science. Back to Devlin. 6. Law and morality – relations. 7. Cases: abortion, homosexual relations and euthanasia. III. Past of the law and of the science of law. 8. Thomistic Aristotelianism. 9. How we lost metaphysics in law after the Salamanca school of natural law. Europe's values now. 10. Law in religion. Religion in law. The first letter to Corinthians. Law of Love. 11. Catholic teaching: Pius IX, Pius X, Leon XIII. IV. Future: Giddens' "we do not know"? Conclusions 3 Introduction. The paper is a provocative insight. This is not a finished project, so footnotes or references are not very well done, and the bibliography does not appear here. My apologies. However, the paper is based on my lecture given in Oxford (Blackfrairs Hall) on 2 February 2015. There are three parts: (the) Present, (the) Past, (the) Future. Ad rem. This paper is to answer the question what jurisprudence is. Is it still ‘the science of things divine and human’, as it was wonderfully stated in the Code of Justinian in 534, following Roman law and great Roman jurists like Ulpian? Is jurisprudence still ‘the science of the just and the unjust’, as we read in the Code? Let us go to Justinian’s Compilation (535 AD), Book I, Of Persons. I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. Thesis. My thesis is that that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Nowadays for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are some good exceptions (Finnis, Bankowski, Doe, Witte, Alexander). 4 I. Concept. 1. The concept of jurisprudence. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state (legal theory, legal philosophy, philosophy of law). Its practical importance in legal education is remarkable and really amazing. What is also important is the change of the meaning: in the past, jurisprudence was the science of law, regarded to every branch of law (in Roman times, Medieval times), related to theology (Medieval times), but in the present, it is only a general theory of law and state (philosophy of law, legal theory: so we consider what law is, what legal interpretation is etc.). 2. Roman law: law and justice. For Roman lawyers, law was justice. Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1, first Celsus!). Equity in law! Ius in more than Lex. Like later, there was made a distinction: Recht and Gesetzbuch. Iuris praecepta sunt haec: honeste vivere, alterum non ledere, suum ciuque tribuere (Ulpianus, D. 1, 1, 10). Live honestly… However, Non omne quod licet honestum est (Paulus, D. 50, 17, 144). Law is not morality in all cases. So we have three principles in Roman law: honesty, harm, and justice. This is the basis of law. Philosophical background of Roman law is here, as Honore says: "As Cicero puts it, ‘They Stoics think it important to understand that nature creates in parents love for their children; and from this source we derive the general sociability of the humanrace…. Even among animals nature’s power can be observed; when we see the effort thatthey spend on giving birth and rearing their young, we seem to be listening to the voice ofnature itself….Hence it follows that mutual attraction among humans is also somethingnatural. The mere fact of their common humanity requires one man not to regard another asalien.’(16 This is close to Ulpian’s account of the natural law common to humans and otheranimals). 16 Cicero, On Ends 3.62, 63: Pertinereautem ad rem arbitrantur Stoici] intelleginaturafieriutliberi a parentibusamentur; a quo initio profectamcommunemhumani generis societatempersequimur….Atqueetiam in bestiisvisnaturaeperspicipotest; quarum in fetu et educationelaborem cum cernimus, naturaeipsiusvocemvidemuraudire…..Ex hoc nascitur et etiamcommunishominum inter hominesnaturalis sit commendatio, ut oporteat hominem ab homineob id ipsum quod homo sit non alienumvideri. We know Roman law from Justinian’s Code: 1) The Corpus Juris (or Iuris) Civilis ("Body of Civil Law") - modern name, 2) A collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor, 3) The work was directed by Tribonian, an official in Justinian's court, 4) The basis of Western legal tradition!!! Three parts and the fourth in the Code: 1) The Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; 529 AD, 2) The Digest or Pandects (the Latin title contains both Digesta and Pandectae – in Greek – all-containing) is an encyclopaedia composed of mostly brief extracts from the writings of Roman jurists; 533, and 3) The Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. 533. Based on Gaius!!!! 4) As a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws), new laws that were passed after 534, later – Syntagma (during the years 572– 77). Attention must be paid to these points also: 1) All three parts, even the textbook, were given force of law, 2) Justinian found himself having to enact further laws and today these are counted. Influence? 1) West: not in general use during the Early Middle Ages!!! 2) After that, secular and ecclesiastical authorities revived Roman law, in turn, became the foundation of law in all civil law jurisdictions, 3) Influenced the Canon Law of the church: it was said that ecclesia vivit lege romana — the church lives by Roman law, 4) Influence on the common-law systems has been much not so strong: some basic concepts from the Corpus have survived through Norman law - such as the contrast, especially in the Institutes, between "law and custom (lex et consuetudo)", 5) International public law – ius gentium! Principles or ideas in RL (according to Joseph Kelly)? 1) Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus" (i.e. Justice is natural, not the effect of opinion), 2) Justice was conformity with perfect laws and jurisprudence was the appreciation of things human and divine, 3) The science of the just and the unjust, but always the science of law with its just application to practical cases, 4) Law was natural or positive (man-made), 5) It was natural strictly speaking (instinctive), 6) Or it was natural under the Roman concept of the jus gentium (law of nations) — natural in itself or so universally recognized by all men that a presumption arose by reason of universality, 7) Slavery: The Romans attributed slavery to the jus gentium because it was universally practised, and therefore implied the consent of all men, yet the definition of slavery expressly states that it is contra naturam, "against nature", 8) Influence on Hobbes in the concept of covenant in Leviathan (ch.XIV): he analyzes the concept of contract or covenant in a legal sense, then he goes to political philosophy, to the social contract. Ideas. The precepts of the law were these in RL: 1) to live honestly, 2) not to injure another, 3) to give unto each one his due. Positive law was the jus civile, or municipal law, of a particular state. Gaius says that all law pertains: 1) to persons, 2) to things, or 3) to actions. The classification is still valid for us. What lacks in Roman law? Let us follow Gordley (The philosophical origins of modern contract law, p. 30-31): 1) Although „Greek philosophy influenced the development of Roman law”, „the Roman jurists did not write like Greek philosophers”, 2) They „were interested more in the particular, less in the ferreting out ultimate principles”, 3) „The Romans had no theory” of contract or „general law of contract” (Watson, Coing), 4) „They had a law of particular contracts such as sale, lease, pledge, and partnership”, 5) „Each with particular rules which they had worked out ad hoc”, 6) „They had not tried to explain in any general or systematic way why these contracts had the rules they did or what features all contracts had in common”, 7) „The organization of contract law”- Gaius (contract, delict); ex contractu, ex delictu, or on the analogy – quai ex) - voluntary and involuntary commutative justice (Aristotle, Thomas). The ideas borrowed by Gaius from Aristotle. Roman law (RL) and European Community Law (Stein, Roman law in European history, in fine) might basically compared: 1) European law (EL) is not the first, 2) RL was a universal law (ius gentium especially), 3) Some similarities (RL-EL), 4) RL as the basis of education, „common law”, ius commune, 5) To unify the law is the aim of the law, 6) Traditions – since Justinian to the modern doctrine. Features of RL: 1) Extreme formalism, 2) The law of the privileged classes, 3) The basis of all civilised legal systems. But also... Joseph Kelly1 , the professor of Roman Law and Jurisprudence, (Kelly, Joseph. "Roman Law." The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company, 1910. 3 Oct. 2014<http://www.newadvent.org/cathen/09079a.htm>.), in 1910 stated that: 1) In its maturity RL recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law, 2) Repudiated the concept that justice is the creature of positive law. RL does not exist without Greece, Greek philosophy and Greek law. There is John Maxcy Zane's The Story of Law2 , a real classic. Have a look how the Greek philosophy of law (Zane) looks: “Oedipus Rex, Sophocles returns to the thought of these higher laws-there speaks of “laws that in the highest heaven had their birth, neither did the race of mortal men create them, nor shall oblivion ever put them to sleep, for the power of God is mighty in them and never groweth old.”, and: “Cicero in his speech for Milo, on this natural law: “The law which was never written and which we were never taught which we never learned by reading, but which was drawn from Nature herself, in which we have never been instructed, but for which we were made, which was never created by man’s institutions, but with which we are all imbued.” In another place he sets forth the whole idea: “True law is right reason pervading us all, constant and eternal. This law it is impious to abrogate or to derogate from; neither senate nor people can release us from it. It did not begin to be law when it was written but when it sprang coeval with the divine mind. It is derived from that most ancient and principal nature of all things, to which all law is directed”. 1KELLY, JOSEPH I., Ph.D., LL.D., Formerly Lecturer ON Roman Law in Northwestern University and Dean of the Faculty op Law IN Louisiana State University, Chicago : Law, Roman. 2 http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=680 10 3. Justinian's jurisprudence. Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. Let us go to Justinian’s Compilation (535 AD), Book I, Of Persons. I. Justice and Law again. While in this place, the aim was to: 1) discover natural laws or laws, and 2) discover God’s truths. We see ius and lex here. And iniuria (wrongdoing), something dishonest. There is also something like a transcendental approach. There is a divine, religious, rather Christian, context of legal rules. Let us take into account Byzantine theology. Facts or important points are like that: 1) the Western Roman Empire failed (476), 2) the Eastern Roman Empire, centred on Constantinople (remained standing until 1453), 3) Chalcedon: Definition of Chalcedon (451 AD) of how the divine and human relate in the person of Jesus Christ, 4) even bakers in Constantinople discussed whether “the humanity and divinity are exemplified as two natures and that the one hypostasis of the Logos perfectly subsists in these two natures” (Chalcedon), 5) Oriental Orthodoxy (e.g. Coptic, Ethiopian, Syrian): that in the one person of Jesus Christ, divinity and humanity are united in one nature, the two being united without separation, without confusion, and without alteration, 6) the home of a wide range of theological activity that was seen as standing in strong continuity with the theology of the Patristic period, 7) theology the most important part of science, 8) religion the most important part of life, 9) domination over law and philosophy, 10) philosophy to justify religion, 11) law to apply religion, 12) mystical theology: Pseudo-Dionysius the Areopagite (working c. 500), Symeon the New Theologian (949-1022), Gregory Palamas (1296-1359), 13) iconophiles: Patriarch Germanus I of Constantinople (patriarch 715-730), John of Damascus (676-749), Theodore the Studite (c. 758-c.826), 14) theological differences: "The static conception of God as actus purus having no potentiality and completely self-sufficient is a philosophical, Aristotelian, and not a Biblical conception”, as it was said by Nikolai Berdyaev. This is John Meyendorff ("Byzantine Theology"3): Conservative in form and intent, Byzantine theology in the age of Justinian continually referred to tradition as its main source. In particular, the Christological debates of the period consisted chiefly of a battle between exegetes of Scripture about philosophical terms adopted by Christian theology in the third and fourth centuries and about patristic texts making use of these terms. Liturgical hymnology, which began to flourish at this time, incorporated the results of the controversies and often became a form of credal confession. The various elements of Byzantine theological traditionalism dominated in the fifth and sixth centuries, constituted the basis of further creativity in the later periods, and required very special attention. In the description4 , it stands as the following: Although the art, monasticism, and spirituality of Byzantium have come to be recognized as inspirational and influential in the shaping of Eastern European civilization, and of the Middle Ages and the Renaissance as well, the West has been in the main ignorant of the historical evolution and the doctrinal significance of Byzantine theology. By the way, my experience from my teaching in Belarus and Russia is that Western civilisation is far away from the Eastern-European one, the Byzantine one, the Russian one. Conceptually, ideologically etc. Too many words should be said here. 3 http://www.holytrinitymission.org/books/english/byzantine_theology_j_meyendorf.htm 4 http://fordhampress.com/index.php/byzantine-theoogy-paperback.html 12 II. Present of the science of law . 4. Contemporary branches of legal theory. I will try to analyse relations between law and religion and morality in contemporary jurisprudence. There are many subjects of this discipline: from strictly legal topics like rules of interpretation to law and legal or constitutional principles to moral considerations about the substance and essence of law or about legal regulation of immoral behaviour. There are also many theories of law now: from legal positivism (Austin, Hart, Raz) to natural law (Fuller, Finnis) to psychology of law (Uppsala) or legal realism (Pound, Holmes, Frank), integrative theory (Dworkin), or even now to feminist theory of law or biological, evolutionary or postmodernist theory of laws or theories based on Rawls (theory of justice!). I should tell what they are about. But is it a place for a narrative about Justice there? Or are they interested in other issues such as legal interpretation, techniques of legislation, equality? In natural law theories there is a spot for such things. There are many new topics now in jurisprudence such as globalisation, the Internet, and new technologies concerning human fertilisation. But general theories of justice are still important. There are scholars like Finnis, Nussbaum, Rawls still interested in Justice (and in Equality! and in what Equality means?!). There were and are scholars like Hart, Raz, Gardner, Green, Dworkin, and Finnis still interested in relations between law and morality. But let us go to the legal-positivistic tradition that has dominated the Oxford jurisprudence and the Western jurisprudence for years. The classic John Austin says in the “Province of Jurisprudence Determined” (London 1832), in the Preface that “positive law” is “the appropriate matter of jurisprudence”. He uses the concept of “general and abstract jurisprudence” (p. v). He distinguished this from other “various objects”. However, he says also that: “The divine law, positive law, and positive morality are mutually related in various ways (p. xvi)”. Laws proper are commands. The divine laws are the laws of God, given by him to human creatures (vii). Positive laws are or form “the matter of general or particular jurisprudence”. But Austin flashes on human law, positive law. He is one of the first positivist in jurisprudence, who says that there are the God’s laws, and the last positivist, who mentions the laws of God in jurisprudence on the other hand. Anyway, he adds that “in the way of resemblance”, positive laws “are related to” both “the laws of God” and “positive morality” (p. viii). Austin is the hero for the continental jurisprudence and the whole legal positivism movement, which way of thinking and concepts, methods, etc., have been dominating indeed. We, in the old continent, know Austin's paradigms and dogmas very well. So from his time on, jurisprudence is about general jurisprudence and particular jurisprudences. There is a legal theory, called also in many countries legal philosophy, philosophy of law or just jurisprudence. Besides this general theory of law and state (as it is called in Germany, but also similarly in Spain, Italy, Portugal, Brazil), we enjoy particular legal sciences e.g. the science of criminal law, the science of civil law etc. Moreover, the science came to be a practice - and to be business-oriented. Some lawyers in Europe or the US are now like experts or specialists to serve business sectors for money: they use their knowledge to be paid by corporations. They are like corporate lawyers. The position at the university is only to make good impression on clients, gives a lot of reputation of being a scholar and honest man, full of credibility, but what else? If you want money, just go to business, to put it bluntly. Where is the academic ethos? Where are academic feelings and emotions? Traditionally, a scholar was to discover the Truth (on the world, relations, laws, not only human, but also of nature, the universe etc.). He was full of scientific emotions5 . Let us avoid this bewailing the state of mind of many academics. The aim of jurisprudence is of three kinds to make three things on law or legal system: 1) generalisation, 2) systematisation, 3) interpretation. The general jurisprudence makes these things at a meta-level. The concrete sciences of law make that at particular levels, in given areas like civil law, criminal law or environmental law. Every branch has own language, traditions, jurisprudence, heroes, and, say, "code of language and understanding"… In every country, so is it. But also at the international level, there are some common shared values like recognised scholars, their opinions, or books, or ideas, or concepts. For example, in the science of international law it is very much visible. But we also speak about international theory of law or international legal interpretation. (I belong to such a group in ESIL, i.e. European Society of International Law, too). Nowadays, the Anglo-Saxon theory of law is very influential. Such names as Hart or Dworkin mean heroes for many scholars around the world, which is generally influenced by the Anglo-Saxon culture and language. Petrazycki said: scholars are masters with feelings on discovering the truth: they are like priests, with a special attitude to pupils, and a university or the academia are like a church of the science. What is the place of religion and morality there? Only bioethics? Only regulation of religious activities? Law is changing, but must be based on common values (Lord Patrick Devlin). Law must be socially acceptable. The concepts of morality and ethics are important. Law regulates moral matters such as abortion etc. Actually, I think that morality or ethics appears at many levels of our human considerations, what is a proof of the importance of moral issues: 1) in ordinary life (we are still talking: “This is wrong”, “He is good”), 2) in all communities (even in the Dominican order!), 3) in state and law, 4) in the world, in international relations, where law is as a morality (J. Austin) or global ethics, more than a law in a sense of hard law. There is an axiological struggle in this science we are talking about. Like everywhere, there are two factors of: the evil and the good. And there is the struggle of values between the factors. We say that there is conservatism or communitarianism versus liberalism, for example. Due to the fact that the dominant paradigm is political correctness, for many academics, a Catholic-scholar is not a serious guy. Even the rather conservative thinker Michael Sandel says in the style: "Hung your opinions while you are a judge in the court, and follow the Constitution". Some add: incorporation of values or morality to law does not mean an incorporation of their ontological justifications (like the Bible). So are these empty? Yes, they are euphemisms, says the secular scholar Peczenik (in our private correspondence we had in 2004-2005), when talks about a lack of Invocatio Dei in the project of the Constitution for Europe. Instead of that, we have used slogans like "spiritual heritage" or others. Is Christianity not the spiritual heritage of Europe? What is then? Islam? Or the French Revolution only? My experience is that recognition of myself as the axiology scholar, made by some academics, is funny in Poland. When some scholars say about me: this axiology guy, it makes them laugh, I guess. In Finland, nobody cares of what axiology is. So I use the term “Value Theory” from now on. But let’s go back in time then. Four examples will be used. Hobbes in his “Leviathan” (London, 1651, in Latin and later English) made some references to God but he was not a religious man and did it, because of necessity of being polite and correct. Grotius made many such references in his De jure belli ac pacis (On the Law of War and Peace), Paris, 1625 (2nd ed. Amsterdam 1631). Locke seems to have been a very religious person, what is visible in many parts of his “Two Treaties on Government” (1689). Mill, two centuries later, is a secular hero, fighting Puritanism and moral perfectionism or hypocrisy in his “On Liberty” (1859) or celebrating some theistic-naturalistic belief and appreciating the utility of religion in “Three Essays on Religion” (1874). We do not need a religion to live happily, he seems to say (p. 120-122). Look at the happy Greeks and Buddhists, he adds. On the other hand, the best European 17th century lawyer Jean Domat (1625-1696), in his essay On Social Order and Absolute Monarchy, says: " The first and most essential of all the duties of those whom God raises to sovereign government is to acknowledge this truth: that it is from God that they hold all their power [sic], that it is His place they take, that it is through Him they should reign, and that it is to Him they should look for the knowledge and wisdom needed to master the art of governing. And it is these truths they should make the principle of all their conduct and the foundation of all their duties" But even Pufendorf, the founding father of the modern natural law theory, who criticized the utility of theology in jurisprudence or\and tried to separate moral philosophy form natural law, used the name of God in his jurisprudence, considering the problem of freedom of religion, "the Unity of the Faith", impossible reconciliation of Protestants and "Papists", possible "the reunification of Protestants in Europe" (Introduction from the On line Library of Liberty)! However, this same Samuel von Pufendorf, in The Divine Feudal Law: Or, Covenants with Mankind, Represented London 1703, which was " reaction to the revocation of the Edict of Nantes in 1685 (the introduction)", ends up with the sentence: "§94 All these things being weighed it seems to me that this Dissention cannot be taken away at once, or in the twinkling of an Eye. But the Remedy must be expected from time: The 6 The same was said by Suarez in the Salamanca school of natural law in "The Reason for, and an Outline of, the Work as a Whole": " In the present work I am doing philosophy in such a way as to keep always in mind that our philosophy should be Christian and a servant to divine theology. I have kept this goal in view, not only in discussing the questions but even more in choosing my views or opinions, inclining toward those which seem to comport better with piety and revealed doctrine. For the same reason, I occasionally interrupt a philosophical discussion and turn to certain theological matters, not so much in order to take the time to examine and explain them in detail (which would fall outside the subject matter I am dealing with here) as in order to indicate explicitly to the reader the way in which the principles of metaphysics should be invoked and adapted in confirming theological truths. I admit that in treating those divine perfections that are called attributes I have gone on at greater length than, it might seem to some, my present purpose demands. But I was forced to do this, first of all, by the sublimity and profundity of the subject matter and, secondly, by the fact that it never seemed to me that I was going beyond the limits of natural reason or, consequently, of metaphysics. Since I have always believed that a tremendous power to understand and penetrate things resides in examining and judging them by means of an appropriate method--a power that I could scarcely maintain if, in the manner of the commentators, I discussed all the questions in the arbitrary and, as it were, casual order in which they occur in the Philosopher's text Metaphysics--I decided that it would be more expedient and useful if I were to preserve the order of teaching in examining and putting before the eyes of the reader all the things that can be investigated and expected in regard to the object of this wisdom as a whole.(...)". 16 process of which may produce much for the Reconciling the Minds of both sides. In the mean while this would very much promote the Affair: If not only the Protestant Princes, notwithstanding these Controversies, would set themselves to defend the common Cause against the Papists who are equally Enemies to both, but also the Divines of both Parties would industriously oppose the common Enemy . If these would mildly and modestly handle the Controversies which are among them, abstain from inhumane Hatred, Cavils, Calumnies, and damning one another , and not omit the Duties of Christian and Brotherly Charity towards each other for their disagreeing Opinions. Lastly , If they would not contend, or strive which shall overcome the other by disputing, so much as which of them shall with greater endeavour conform their Lives to the Precepts of Christ: So it might be hoped that the Spirit of Peace would heal by degrees the exasperated Minds of Men, so as that casting away what is Vain and Erroneous, they might conspire in the Unity of the Faith. If any thing in this W ork is fallen from me, disagreeing with the Genuine Sense of Holy Scripture, beside my Intention, let it be as not said. S. D. G .". Could you imagine such an introduction in the book of 1703: " The Works of this Excellent Author need no Man’s Recommendation, nor can I think fit to pretend to give them any Advantage by mine (...) Now this is done, I pray God it may be serviceable to all those good Purposes mention’d, to whom be Glory for ever .Amen." Could you imagine that? Could you imagine such words now? 5. John Finnis - exceptional scholar. Struggle in the science. Back to Devlin. Now I will shortly present some ideas of John Finnis (and the Catholic teaching on moral issues). I do not want to make any congratulatory scroll. I know that you know him, and I know that I know him. He is a really exceptional scholar, who is consistent in his public actions. Based on Aristotelian-Thomistic doctrine, he is trying to understand jurisprudence in these categories in his publications. In the categories of reason, social peace, and virtue. His publications on values, law and morality, marriage or sexual orientation, are the conceptualisation of his Thomistic belief in social peace and common sense, and reason, that is deeply rooted in a transcendental approach to human existence in God. His theory is related to practice: he bravely disagreed to depenelisation of homosexual acts in a campaign in the 17 US, in Texas in the beginning of the new millennium. Who of us, the contemporary scholars in jurisprudence, is able not only wonderfully talk about values, but also fight for the values he or she believes in, and do that in a civilised way by propaganda, discussions, talk, lectures etc. etc.? Even if one may think of Finnis' ideas as too conservative..., we should pay tribute to him. However, the Australian philosopher Brain Tamanaha points out while talking about Finnis7 at own blog: “Natural law philosopher John Finnis, of Oxford and Notre Dame Law School, thinks Western societies are quickly going to pot, and he lays some of the blame for this on sexual permissiveness (including homosexuality) and on loose immigration policies. These claims can be found in his recent essay on the political philosophy of H.L.A. Hart: European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia’s or the Levant’s. That is a dire prognosis. Much of Finnis’s essay is taken up with a critique of Hart’s Law, Liberty, and Morality (1963), which argued against the criminalization of private, consensual, sexual behavior— homosexual behavior in particular.”. Tamanaha also adds with irony: “Said many times by doomsayers in the past, and frequently repeated by cultural-nationalist populists today, Finnis shrilly warns about the imminent demise of (European, AngloAmerican) civilization posed by the aliens at the gates, the yellow peril, the Muslim hordes, the Mexican laborers…a collapse facilitated by the internal rot of moral decay and sexual debauchery.”. 7 B. Tamanaha, John Finnis on Hart, Homosexuality, Immigration, and the Decline of Western Civilization, http://balkin.blogspot.fi/2009/09/john-finnis-on-hart-homosexuality.html 18 But Finnis’ philosophy is based on appreciation of practical reason, not on God only. And this is a big misunderstanding of this in Tamanaha's critique. Another good example is Professor Bankowski’s ideas on law and theology and love in law. By the way, the good example is, for sure, also Law and Religion Scholars Network, headed by Professor Norman Doe. In the past, the great example was Lord Patrick Devlin, for sure. But go back to the meritum. First, Bankowski is a philosopher interested in theology and ethics, but he is not very conservative indeed. Rather liberally thinking and open quasiChristian philosopher of law, who finds out the God in the second man and ethical institutions of law or in conceptualisation of the idea of the Good Samaritan. For Bankowski8 , the New Message and the Christian Heritage mean that Europe should be open for the other e.g. especially Muslims. Inclusion is the clue. It is about the love of your neighbour. Bankowski says: do not be afraid of the inclusion. Also Jesus was open, and that was the faith of the founder of the religion. He was not to exclude the others. Of course, we should also change ourselves in this process of the meeting of cultures, he adds. Anyway, Bankowski uses many references to the God and Christ in his jurisprudence: his philosophy is somewhere or something on the borders of moral, political and legal philosophy9 . The Good Samaritan is a hero or, better to say, a pattern of how to treat other people, for him10 . Bankowski was brave to say: yes, I had had the crisis of faith, and I was a left wing academic (Bankowski was against state law, as law was like an order, so Law was like God), but on the other hand, he was still seeking God (maybe in the other, in ethics, in relationships, in law) while doing legal philosophy11, while writing on living lawfully or on the ethical institution that is in law. Exceptional scholar also. In the old style. Lord Devlin is worthy even more attention. What was his idea? It’s interesting. While in the second half of the 20th century, especially since the 50thies and 60thies, Herbert Hart and Ronald Dworkin, both the Oxford professors in jurisprudence (respectively, 1952-1969 and 1969-1998; by the way, one has to know that the Oxford jurisprudence as well as the Cambridge one, like in the person of Kramer today, were and are dominated by legal 8 His papers : 1. a post-conference book from the IVR 2007 congress, 2. Beyond Text, 3. The Farewell lecture in Edinburgh, the last two sent me by the author himself. 9 Bankowski, IVR. 10 Bankowski, Beyond Text. 11 BankowSKI, The Farewell. 19 positivists who do not love natural law theories), presented the idea of law as a minimum of morality, law as a liberal and progressive law, suggesting the liberalisation of abortion law, pornography law, laws concerning homosexual acts and laws on prostitution, Lord Devlin presented the idea of a more conservative law. Hart was the defender of personal freedom and liberties and a minimal state in moral life. The liberal moral, political and legal philosopher Ronald Dworkin, Hart's pupil, was the most influential legal thinker among politicians, and judges in the West. In the Telegraph12, we read Feb 15th, 2013: “He was widely regarded as one of the most influential philosophers of law of the post-war era. To his admirers Dworkin was a standard-bearer for liberty and equality against the partisanship of pork-barrel politicians and the tyranny of the majority; to his detractors on the Right, he was the ideologist-in-chief of today’s enterprise-sapping “Rights Culture” and the rise of an anti-democratic judicial activism. ”. Not only liberal but also conservative issues of the law are still important for the lawmakers. We should go back to Lord Patrick Devlin’s theory of law. Is not it better when a given law is rather based on so called a shared morality than e.g. only on the harm principle? This morality that would be the basis of the law requires from people much more than the harm principle. The problem sounds: how to make people morally better, how to preserve the traditional morality, shared morality, the morality of majority of one society? That is right that Lord Patrick Devlin13 was a conservative English philosopher of law. But it should be said that it is necessary to use many quotations to analyze his philosophy of law. Devlin asked: “What is the connection between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin or immorality as such?” (Devlin 1971, Morals and the Criminal Law: 25). He attacked liberalisation of the law, which did not forbid homosexual acts. According to Devlin, homosexual acts must be forbidden and punished14 . Institution of marriage as a “part of the structure of our society” and “the basis of moral code which condemns fornication and adultery” must be protected by the law, even by violence. Morality is a foundation of society and its existence (Devlin 1971: 24-48). Without social common morality there is no society. Everybody knows what is moral and immoral – people have moral feelings and feel 12 (http://www.telegraph.co.uk/news/obituaries/law-obituaries/9873847/Professor-Ronald-Dworkin.html ) 13 See DEVLIN, P. (1971) Morals and The Criminal Law IN WASSERSTROM, R. A. (Ed.) Morality and the Law. Belmont, Wadsworth. 14 Famous was the Turing case in the 50s. 20 immorality of behaviour in conscience: “Immorality then, for the purpose of the law, is what every right-minded person is presumed to consider to be immoral”. This is about the "Clapham omnibus" standard (the "right-thinking", "average" man and his feelings, opinions, beliefs on morality). If society takes aim at being alive and exists not only by the generation time, morality must be respected and the law must be based on the society's morality. If you break down morality, you must be punished, because your immoral act may influence on members of society and you yourself. Immoral acts such as abortion, prostitution, fornication or homosexual acts must be forbidden by the law. Integration of society and its uniformity seem to be a central point of Devlin’s thought: “There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions”. There is no private and public morality, says Devlin. ”I do not think that one can talk sensibly of a public and private morality any more than one can of a public or private highway”, Devlin highlights. Why is there no difference between them? Devlin adds that “Morality is a sphere in which there is a public interest and a private interest, often in conflict, and the problem is to reconcile the two”. He believes that “most people would agree upon the chief of these elastic principles. There must be toleration of the maximum individual freedom that is consistent with the integrity of society” (Devlin 1971: 36-40). In Devlin’s thought the morality is correlated with religion: “Morals and religion are inextricably joined – the moral standards generally accepted in Western civilization being those belonging to Christianity”. Religious norms such as Christian or Muslim rules may be a foundation of the law in Devlin’s theory. Devlin concludes: “No society has yet solved the problem of how teach morality without religion. So the law must base itself on Christian morals and to the limit of its ability enforce them (…) without the help of Christian teaching the law will fail”. Responding to Hart’s critique, in which we can read that Devlin thinks that morality can never be changed without the destruction of society, Lord Patrick thinks that “If morality is changed, the law can be changed” (Devlin 1971: 28, 37, 48). Thus, what follows for this analysis of Devlin's ideas? First, even in conservative philosophy of law we can find some aspects which make the law liberalisation in socially and morally controversial cases possible. Second, the conservative philosophers of law have serious difficulty in proving that the society's morality is never changed. Third, in spite of Devlin’s critique the idea that society must be based on fundamental principles and rules, and 21 there must be necessary connections between making legal prohibitions and real danger to the society existence (if a law liberalisation would be), seems to be still alive and inspiring for lawyers, philosophers, politicians. These theses on one hand are important for the liberals, but on the other hand, these mean that Devlin was not such a silly man as he is now too often presented. He followed the reason and the way of thinking of average member of one traditional society (the Clapham omnibus, which was a moral-legal concept of a rational man of the post-Victorian moral era, I would say). Devlin really supported the idea of morally conservative law as a measure to preserve one society. Even if his theses are a little exaggerated, we cannot avoid the questions what is better for the society's morality in law-making process, what a shared morality means, what to do with opinions of the average citizens, and whether politicians really know better than the citizens how to make the law better, and where is their (politicians’) legitimacy when politicians’ actions are obviously contrary to the society's majority15. These issues are still open. 6. Law and morality – relations. In our contemporary jurisprudence, we say that there are three fundamental kinds of relations between law and morality. One is about content, the second is on validity, and the last one is about functions. Both law and morality are to control a society: morality to make a man better, and law to keep the order. Here is the presentation of the relations of the field of the contents. 15 E.g. if 70 % of one society's population has supported a capital punishment for 30 recent years, and the politicians say: it is impossible to come back to this measure, because it is not humanitarian and seems to be legally doubted in the light of international obligations, then my question sounds: where is a democracy and a voice of the nation? Vox populi non est vox Dei in a democratic state? On the other hand, as Mill teaches us, the majority may be wrong, because most of the people are stupid at all. It does not mean that it is good to disdain moral feelings of the people who are the majority in one society. 22 The relations of the contents. Model I.16 There is a common part, regulated by both systems. Model II There is no a common regulated area. (What is wrong, of course, as there is such a part, in fact!)17 . It seems we can also talk about model III. This is a model, in which law is always a part of morality. Law is a minimum of morality. What is regulated by law is always regulated also by morality. Of course, morality is wider. Law incorporates the most important moral rules only. Justification of law is, axiologically, always deeply rooted in morality. "Do not kill" is such a rule. Many other legal rules seem out of morality... But on the other hand, more deeply axiologically going, even legal norms concerning road law are to protect the moral value of life and health, and social order. So in this sense, it is the minimum of morality. Generally, what we see as a general trend and the global one is the liberalisation of law in a way that law allows more freedom in sexual or moral life. More on law and morality relations theses I said in my doctor's thesis published in 2010. 16 Do not kill. Do not steal etc. These norms are transformed by incorporation (direct), axiological terms, terms referred to morality. 17 Also called the model of separation. 23 Here are the relations of the validities. Model 118 – inclusion (moral justification or axiological explanation of validity of each legal rule; immoral rules are not rules - Radbruch). Law as a minimum of morality. L